Ecologically sensitive zones (ESZ) are intended to protect ‘protected areas’ – national parks and wildlife sanctuaries – by transitioning from an area of lower protection to an area of higher protection. ESZs are effectively insulating layers where humans and nature can be at peace with each other. However, the creation of these zones has provoked protests in Kerala and some other areas, in a precursor to what is likely to emerge in other parts of the country.
Why is this happening?
Protected areas cover 5.26% of India’s land area as 108 national parks and 564 wildlife sanctuaries. They are notified under the Wildlife (Protection) Act 1972. National parks do away with permissions for even those activities permitted in ‘reserve forests’ while wildlife sanctuaries offer progressively diminishing concessions.
This is the rights-negating ‘fortress conservation model’, which conservation scientists abandoned long ago. It is also no longer present in Indian law, at least over forests within the purview of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 – a.k.a. the Forest Rights Act (FRA). FRA recognises the customary and the traditional rights (both individual and collective) of forest-dwellers on forest land, including inside protected areas.
India’s colonial forest regime should have recognised these rights but didn’t, resulting in a historic injustice that lawmakers tried to undo with the FRA. The Ministry of Environment, Forests and Climate Change reckoned in 2009 itself that doing so would mean handing over at least four lakh sq. km – more than half of India’s notified forest area – to village-level institutions. But as of June 2022, only 64,873.70 sq. km – or 16% – had come under the FRA. (The actual area is likely smaller because some areas have been counted multiple times for different rights.)
Then again, we must consider that this has been achieved in only a decade and a half, compared to no improvements in the six decades before. It is a sign of what can happen when the power to determine rights is transferred from government officials to the gram sabhas at the habitation level, in an open democratic process.
These gram sabhas are now the statutory authorities empowered to conserve, protect and manage forests, wildlife and biodiversity lying within the traditional village boundaries over forest lands. This is to be a new category of forests called ‘community forest resource’ (CFR). Gram sabhas have to integrate their CFR conservation and management plan into the ‘working plan’ of the Forest Department, with the required modifications.
Surrounding these protected areas is an area of more than 1,11,000 sq. km – or 3.4% percent of the country’s land – which in effect falls under the ESZ regime. Governments have notified 341 ESZs in 29 States and five Union territories, while another 85 ESZs are awaiting notification. Together, protected areas and the ESZs cover 8.66% of India’s land area.
The ESZs span notified forests outside protected areas, most of which could also come under gram sabhas’ jurisdiction under the FRA. The extent of ESZs from the boundary of a protected area ranges from 0 to as much as 45.82 km (in Pin Valley National Park, Himachal Pradesh). Fifteen states have ESZs exceeding 10 km.
Significantly, parts of ESZs in ten States – Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana – fall within the Scheduled Area notified under the Fifth Schedule of the Constitution. Such Scheduled Areas cover over 11% of the country’s land area and are mostly thickly forested and mountainous. They are preponderantly populated by Scheduled Tribe groups and are notified by the President under Article 244 of the Provisions of the Panchayat (Extension to Scheduled Areas) Act (PESA) 1996.
PESA recognises habitation-level gram sabhas to be competent to safeguard and preserve community resources on forest and revenue lands in Scheduled Areas. Effectively, PESA and FRA are two flagship laws of the Union government that, for the first time in independent India, gave primacy to people’s democracy in governance.
However, the Ministry of Environment, Forests and Climate Change (MoEFCC) has shown no inclination to amend the Indian Forest Act 1927, the Wildlife (Protection) Act and the Environment (Protection) Act 1986 (under which ESZs are notified) to comply with PESA and FRA.
In fact, in the Forest Conservation Rules, compliance with FRA, recognition of forest rights and gram sabha’s consent were preconditions for considering proposals to divert forest land for non-forestry purposes – until the MoEFCC did away with them in 2022. The ministry has also overlooked demands by the National Commission for Scheduled Tribes to restore the erstwhile FRA compliance procedure.
The 2002 Wildlife Conservation Strategy envisaged lands within 10 km of the boundaries of national parks and wildlife sanctuaries to be notified as ecologically fragile zones under Section 3(2)(v) of the Environment Protection Act 1986 and its Rules 5(viii) and (x). The MoEFCC was to take steps to protect the environment by regulating and (if required) prohibiting industries, operations and processes.
Rule 5(1)(vi) provided for environmentally compatible land-use in areas around protected areas. The National Wildlife Action Plan (2002-2016) also endorsed this view. In 2005, the National Board for Wildlife decided to delineate site-specific ESZs to regulate specific activities instead of prohibiting them. So on May 27, 2005, the MoEFCC asked the States and UTs to propose ESZs. On December 4, 2006, the Supreme Court directed the MoEFCC (W.P No.460/2004) to have the States’ and UTs’ proposals submitted within four weeks.
But four years later, the MoEFCC still hadn’t issued the ESZ guidelines. The Supreme Court pointed this out on December 3, 2010 (I.A No.2609/2009), prompting the MoEFCC to submit the guidelines on February 9, 2011. Based on the forest rangers’ inventory of land-use and wildlife corridors within 10 km of each protected area, a committee consisting of the Wildlife Warden, an ecologist, and an official from the local government was to determine the extent of each ESZ, the nature of environmental concerns to be addressed and ways to address them. The Chief Wildlife Warden was to then list the activities that were to be prohibited, to be restricted with safeguards and to be permitted.
Finally, the state government would submit this, the geographical description of the area and the biodiversity values, the rights and entitlements of local communities, and their economic potential and implications for their livelihoods, as a proposal to the MoEFCC for notification.
The guidelines also outlined a general indicative list of activities to be prohibited, regulated or permitted (see list at the bottom) and information to be incorporated in the proposal.
The State government is required to draft a Zonal Master Plan for each ESZ within two years of notification, in consultation with a number of departments. But since ESZs began to be notified in 2012, we don’t know whether any Zonal Master Plan has been made, or how.
Also to monitor compliance with the various provisions of each notification, a State had to set up a monitoring committee for each ESZ. It needs to be headed by the District Collector as the chairperson and a representative of the Forest Department as its member-secretary, plus include various representatives, from State departments, NGOs and other experts. The committee is required to report the actions taken to the Chief Wildlife Warden every year. Courts are prohibited from taking cognisance of any offence except on complaints filed by the District Collector or the forest official who heads the committee.
Unfortunately, the institutional mechanisms and procedures prescribed in the guidelines and the ESZ notifications disregarded many legal facts and statutory requirements. They set aside the habitation-level gram sabhas in Scheduled Area and CFR forests – and the Panchayat-raj institutions entrusted with soil conservation, water management, social forestry, etc., even though those activities fall squarely within the scope of ESZs.
In effect, what ought to have been a location-, community- and ecology-specific plan, arrived at through people’s informed participation, became a virtually ‘one size fits all’ notification.
The Supreme Court order
Now, on June 3, 2022, the Supreme Court overlaid further directions on this already confusing process (I.A. No.1000 of 2003 in WP(C) No.202 of 1995).
First, the court said that the MoEFCC guidelines are also to be implemented in the area proposed in the draft notification awaiting finalisation and within a 10-km radius of yet-to-be-proposed protected areas. The Court also allowed States to increase or decrease the minimum width of ESZs in the public interest.
Second, the court vested the powers to ensure compliance with the guidelines with the Principal Chief Conservator of Forests (PCCF) and the Home Secretary of the State/UT. The PCCF was to make a list of all structures within the ESZs and report it to the Supreme Court within three months. This has yet to be done. The court also ordered that no new permanent structure could come up for any purpose within an ESZ.
This brings us to the reason for the protests in Kerala: All the activities permitted by the guidelines and which are already being carried out can continue only if the PCCF grants permission, and that too within six months of the court’s order. This period has already expired.
Effectively, these court’s directions have put the lives of many people in the hands of the PCCF – whose authority now extends beyond the forest to revenue lands falling within an ESZ. The Home Secretary is in tow, which means the State police force is also in tow.
The new structures that are banned could include electric poles, buildings, walls, roads and bridges. Millions of forest-dwellers living on forest land and on the fringes of forests are the most affected. After having been denied forest rights, they are now also denied better public infrastructure. The government and the judiciary need to reconcile laws, reaffirm democratic governance, and protect the environment and as well as livelihoods.
C.R. Bijoy examines resource conflicts and governance issues.
- Commercial mining – Regulation will not prohibit the digging of earth for construction for repair of houses and for manufacture of country tiles or bricks for housing for personal consumption
- Setting of saw mills
- Setting of industries causing pollution (water, air, soil, noise etc)
- Commercial use of firewood – For hotels and other business related establishments
- Establishment of major hydroelectric projects
- Use or production of any hazardous substances
- Undertaking activities related to tourism like over-flying the National Park area by any aircraft, hot-air balloons
- Discharge of effluent and solid waste in natural water bodies or terrestrial area
- Felling of trees – With permission from appropriate authority
- Establishment of hotels – As per approved master plan, which takes care of habitats allowing no restriction on movement of wild animals
- Drastic change of agriculture systems
- Commercial use of natural water resources including ground water harvesting – As per approved master plan, which takes care of habitats allowing no restriction on movement of wild animals
- Erection of electrical cables – Promote underground cabling
- Fencing of premises of hotels and lodges
- Use of polythene bags by shopkeepers
- Widening of roads – This should be done with proper EIA and mitigation measures
- Movement of vehicular traffic at night – For commercial purpose
- Introduction of exotic species
- Protection of hill slopes and river banks – As per the master plan
- Air and vehicular pollution
- Sign boards & hoardings
- Ongoing agriculture and horticulture practices by local communities – However, excessive expansion of some of these activities should be regulated as per the master plan
- Rain water harvesting – Should be actively promoted
- Organic farming – Should be actively promoted
- Use of renewable energy sources – Should be actively promoted
- Adoption of green technology for all activities – Should be actively promoted